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[2011] ZAECMHC 13
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Golimpi v Unitrade 117 CC t/a Stop Discount (996/2010) [2011] ZAECMHC 13 (23 June 2011)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE HIGH
COURT, MTHATHA)
Case no. 996/2010
In the matter
between:
THEMBELA TAMARA
GOLIMPI
….......................................................
Applicant
And
UNITRADE 117 CC T/A
STOP DISCOUNT
…....................................
Respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
HINXA AJ :
[1] In this matter
the applicant instituted application proceedings against the
respondent seeking relief in the following terms
:
That the respondent
be and is hereby directed to complete and sign unemployment
insurance fund application forms of the applicant
which were handed
to the respondent on the 24
th
of February 2010.
That the respondent
be and is hereby directed to furnish applicant’s attorneys
with the said duly completed unemployment
insurance fund application
forms within ten days from the date of service of this order.
That the respondent
shall pay costs of this application.
That the above
Honourable Court grant such further and/or alternative relief.
[2] When the matter
came for hearing on an opposed basis, the respondents having filed
the answering affidavits, it turned out that
the applicant had
already been furnished with the forms in question, duly completed by
the respondent in compliance with prayer
a, and b,
supra.
[3] On this basis,
the application became academic and only the issue of costs remained
outstanding and fell to be considered and
discussed.
[4] The facts which
appear to be common cause in this application can be summarised as
follows :
4.1 The applicant, a
major female, was on or about 1 July 2003 employed by the respondent
as a credit clerk working at its shop
at Old Transkei Building,
Elliot Road in the district of Umtata.
The respondent is
a close corporation with limited liability duly
incorporated in
terms of the Close Corporation Act of 1984.
On or about 24
June 2009 the applicant was confronted by one Mr.
Chris Howie (on
behalf of respondent) about theft and fraud in the shop, an
accusation which the applicant vehemently denied.
On 28 June 2009
the applicant was verbally suspended by the said Mr.
Howie.
An enquiry was
held in the absence of the applicant wherein she was
dismissed.
On 24 February
2010 the applicant per its attorneys, wrote insists to
the respondent
requesting it to complete the unemployment insurance certificate for
onward transmission to the Department of Labour.
On the same day
the respondent (per Mr. Howie) responded by e-mail
acknowledging
receipt of the aforementioned correspondence and requesting the
applicant’s attorneys to furnish them with copies
of the
relevant forms and applicant’s identity document so as to
comply with the request.
The applicant’s
attorneys duly complied on 25 February 2010.
On 13 April 2010
the applicant instituted the present proceedings
against the
respondent and service was effected on 16 April 2010 at 8h15 upon the
respondent (per Mr. Brian Eamiah who was apparently
in charge).
The respondent
filed its notice to oppose the application on 11 June
2010, followed by
its answering affidavit (deposed to by Mr. John Howie) on 2 July
2010. Hereto attached was a letter dated 16 April
2010 addressed to
the applicant’s attorneys wherein the respondent was advising
that the documents requested on 5 March 2010
have been waiting for
collection since 8 March 2010.
In the answering
affidavit, the respondent did not tender any payment
of the applicant’s
costs.
The applicant,
filed a replying affidavit on 7 July 2010 and caused the
matter to be set
down for hearing.
[5] The applicant
derives her right to be furnished with the signed unemployment
insurance fund application forms by the respondent
from the
provisions of
Section 56
(1 and
3
) of the
Unemployment Insurance Act
63 of 2001
read with
Regulation 18
(1 and
2
). In terms hereof, an
employer must, by the seventh day of each month, inform the
Commissioner of any changes arising during the
previous month
regarding the employees’ remuneration details including new
appointments and
termination of service
(my emphasis).
[6] According to
annexures UNI 3 and TTG 6 filed of record, the applicant was
dismissed by the respondent on 11 September 2009.
In terms of the
abovementioned legislation, the respondent should have
mero
motu
informed the Department of Labour
(Commissioner in particular) by the seventh day of October 2009 of
this termination of service.
This would undoubtedly obviate any
request from the applicant for the completion of the forms in
question, let alone the present
proceedings. Having failed to meet
its obligation on the 7 October 2009, the respondent was prompted by
the applicant on 24 and
25 February 2010 to comply within five (5)
days. The respondent only signed the forms on 8 March 2010.
[7] It is not
discernible from the papers, nor did Mr Majali for the respondent
refer me to anything in the papers, as to why did
the respondent fail
to comply timeously with its obligations.
[8] Having signed
the documents on 8 March 2010, the respondent further, and
critically, failed and ignored to notify the applicant
promptly and
only did so after the applicant, as was her rights, had instituted
the present application on 16 April 2010. The explanation
by Mr
Majali for this inordinate delay was that the respondent owed no duty
to notify the applicant as it was the latter’s
duty to come and
retrieve the forms.
[9] This argument is
devoid of any substance and credence. It is unimaginable, and Mr
Majali did not explain, how in law and in
logic could the applicant
be reasonably expected to go and retrieve the forms without being
notified that they were ready. It cannot
be argued with any measure
of justification, hence Mr Majali failed to convince the court, that
a mere telephone call by the respondent
would not serve the
notification purpose in the circumstances of this matter.
[10] In the
circumstances, I am persuaded to find merit in Mr Pangwa’s
submission that compliance with legal obligation only
took place on
16 April 2010 when the respondent deemed it fit to notify the
applicant about the readiness of the documents. Further
argument by
Mr Pangwa that even this compliance was actuated by receipt of
summons has much to commend it.
[11] It is equally
incomprehensible, and Mr Majali did not attempt to explain, why the
respondent did not tender payment of the
applicant’s costs upon
belated furnishing her with the required documents.
[12] The situation
in this case is in all forms with the case of in
Mapela
Fikiswa v Experian SA (Pty) Ltd 1687/2007
and
Fikiswa Mapetu v Transunion (Pty) Ltd
(both unreported cases from this division). In both
cases the court held that where the respondent was obliged to comply
with statutory
obligation to furnish the applicant with the
documents, and it does so only after the legal proceedings have been
instituted, it
would at the very least at that stage tender to pay
the applicant’s costs.
[13] In the
Transunion case, Schoeman J went further (at paragraphs 25-27) to
hold that the respondent should have made that offer
prior to
approving the application. Contrary to such expectation, it increased
costs many-fold by opposing the application on the
same day it
furnished the information.
[14] At this
junction it is apposite to refer to the remarks of Combrick AJA in
Claase v Information Officer South African
Airways (Pty) Ltd 2007(5) SA 469 (SCA)
at
470A-471A
where he said, “The
present appeal illustrates how a disregard of the aims of the Act and
the absence of common sense and
reasonableness has resulted in this
court having to deal with a matter which should never have required
litigation”.
[15] Echoing similar
sentiments in the Experian matter, Alkema J remarked, (at paragraph
5), “I have at the outset of this
application, and even before
the application was called, expressed my disquiet about the fact that
the time of the High Court is
consumed by applications for costs
which should not detain this court. My disquiet in relation to the
nature of this application
is shared also by other courts and our Law
Reports abound with judgments on this issue”.
[16] In all the
aforementioned three cases, the courts concluded by expressing the
view that where the state body or private person
or institution
obdurately and unreasonably refuses to furnish records in
circumstances where it obviously should have, the court
may make a
punitive order of costs to mark its displeasure.
[17]
In casu
Mr.
Pangwa placed on record, without elaborating, that he was not arguing
for punitive costs, but for costs on a party and party
scale
notwithstanding the respondents’ conduct that deserved to be
visited with punitive costs.
[18] It is trite
exposition of our law that the courts have discretion in the award of
costs. In the exercise of such discretion,
I find myself unpersuaded
by Mr Pangwa’s inexplicable mercy.
[19] In these
circumstances, I am of the opinion that the stern approach adopted by
the courts in the abovementioned cases on punitive
costs should
obtain with more vigour in this case.
[20] In the
premises, I make the following order :
The respondent is
ordered to pay all the applicant’s costs on the scale as
between attorney-and-client up to/ and including
today.
__________________________________
M. D. HINXA
ACTING
JUDGE OF THE HIGH COURT
HEARD
ON : 06 MAY 2011
DELIVERED
ON : 23 JUNE 2011
ATTORNEY
FOR THE APPLICANT : MR PANGWA
INSTRUCTED
BY : CAPS PANGWA & ASSOCIATES
MTHATHA
ATTORNEY
FOR THE RESPONDENT : MR MAJALI
INSTRUCTED BY :
MESSRS W.T. MNQANDI &
ASSOCIATES
MTHATHA